It has come to this: A top lawyer for the U.S. government stood before the Supreme Court recently and argued, in all seriousness, that American taxpayers should not have the right to sue if the Bush administration begins building churches with public funds.
Solicitor General Paul D. Clement made this startling assertion while being questioned by Justice Stephen Breyer during an oral argument Feb. 28. Clement, representing the Bush administration, wants the high court to curb the right of taxpayers to go into court to defend separation of church and state.
Chief Justice John Roberts must have known how far out Clement’s argument sounded. He threw Clement a lifeline, asserting that taxpayers would still have the right to sue over a government church-building program because it would be a form of religious discrimination.
That’s cold comfort. First of all, while that may be the chief justice’s view, it’s unclear if four other justices back it. During the argument, Justice Antonin Scalia mocked the idea that people should be able to sue simply because they are offended by a government action.
Scalia can usually count on Justice Clarence Thomas to side with him, and Justice Samuel A. Alito Jr. seemed favorable as well.
More importantly, what would happen to a government program that extended tax support to all religious groups? Under Roberts’ theory, there would be no discrimination among religions. A program like that could not be challenged.
The fact is, the framers of the Constitution rightly saw compelled government support for religion as a great evil. They opposed programs that taxed people to support one officially established church or 15 churches. They believed support for religious groups should come from the members who voluntarily choose to join them.
Taxpayers must have the right to challenge government spending that furthers religion because it’s often the only effective way to enforce that part of the First Amendment that bars laws “respecting an establishment of religion.”
In the case before the Supreme Court, Hein v. Freedom From Religion Foundation, taxpayers seek the right to challenge the White House’s promotion of the Bush “faith-based” initiative.
They should have that right. No branch of government should be permitted to take our money and funnel it to religious organizations against our will. Such activity is a tax for religion — a concept as noxious today as it was two and half centuries ago.